Appeal delay

Labour & European Law ReviewWeekly Issue 28327 August 2012

Claimants who want to appeal against a Tribunal decision must do so within 42 days unless they can provide a good reason for the delay. In O’Cathail v Transport for London, the Court of Appeal said that the claimant could not rely on his disability in order to be granted an extension of time.

Basic facts

Mr O’Cathail went on sick leave in January 2008 and was dismissed in December 2010.

He lodged a series of claims against his former employer, one of which was disability discrimination, including harassment. The Tribunal upheld his discrimination claim but dismissed the harassment claim.

The date for appealing the harassment decision was 27 January 2010. Mr O’Cathail lodged the notice of appeal form in person at the EAT on 26 January, which he mistakenly thought was the last day. However, he did not lodge the Tribunal judgment and reasons at the same time, both of which were essential for initiating his appeal.

He then became so stressed out that he had a panic attack and was too ill to file all the outstanding documentation the next day. He emailed the Tribunal judgment to the EAT the day after (28 January).

EAT decision

The judge agreed that Mr O’Cathail was very depressed after receiving the Tribunal decision; that he was aware of the deadline for lodging the Notice of Appeal (although he thought it was 26 January); and that his disability (depression, anxiety, and panic attacks) stopped him from working on his grounds of appeal until the end of December 2009.

The judge also found that his disability was a contributory factor in his inability to travel to the EAT on 27 January to lodge the additional documents.

However, she concluded that Mr O’Cathail’s disability was not the reason for failing to lodge the appeal in time. That was because he had left it to the very last minute, running the risk that, if something went wrong (as indeed it did), he might not have time to put it right.

Decision of Court of Appeal

The Court of Appeal upheld the decision of the EAT, saying that it could only be overturned if was “plainly flawed” or procedurally or legally wrong. It accepted that Mr O’Cathail was only out of time by a day, but the crucial issue was whether he had a good excuse for that delay, rather than whether it was long or short.

Although his disability was a relevant factor in deciding whether he had a good excuse for not complying with the time limit, it did not explain or excuse his failure to attach the required documentation.

The EAT judge had taken his disability into account when she accepted that it was the reason why he was unable to start work on his appeal until the end of December 2009. That, however, still left him four weeks in which to prepare for it.

The judge had also found as a fact that his disability had not stopped him from producing long and complex grounds of appeal or submitting them in time. His disability did not, therefore, explain or excuse his failure to attach the required documentation. He had “demonstrated by his own conduct that his disability does not prevent him from meeting time limits”.

Likewise, although his disability was a contributory factor in his inability to travel to the EAT on 27 January, this had nothing to do with the delay in lodging the additional documents.

The Court acknowledged that this approach might seem hard-hearted but emphasised that the EAT had to be even-handed when considering “the conflicting positions of both parties and the public interest in good judicial administration, not just the plight and pleas of an applicant seeking an indulgence from the EAT”.